There is a great shame that hangs over the American legal system: the injustice of the Guantanamo detainees. Today, 41 Muslim men remain at Guantanamo. Thirteen have cases in the military commission system. The remainder have been held for up to 16 years without charges filed against them. Five of these have been cleared for transfer, meaning that the Pentagon and the intelligence agencies have agreed that they pose no security threat. Many of the 41 detainees have been tortured at either CIA "black sites" or at Guantanamo itself.

President George W. Bush released 532 detainees by the end of his second term, and President Barack Obama released 197 and sought to close Guantanamo, but was prevented by congressional action. Nine detainees have died since the prison opened, several by suicide. Now President Donald Trump has vowed that he would "absolutely authorize" torture techniques such as waterboarding on the grounds that terrorism suspects "deserve it," and that he would fill Guantanamo back up with "bad dudes."

CLOSE

16 years after the opening of the detention facility at Guantanamo Bay, activists rally demanding its closure. Meanwhile, 11 prisoners still held there filed a legal challenge Thursday against the Trump administration over their detention. (Jan. 11)
AP

Since the United States claims Guantanamo Bay pursuant to a 1903 lease authorizing a naval station and coaling station which later became a "perpetual lease," the U.S. Constitution extends to this property and its inhabitants. One bedrock principle of due process is that extended detention without affording a trial for the individual is illegal. Sixteen years is beyond any shred of due process. Even a year cannot be justified. For this reason, all 41 detainees should be released.

Yet there are other reasons for the releasing of the detainees. Two of them, Toffiq Al-Bihani and Abdul Latif Nasser have been approved for transfer to other countries who are willing to receive them. Their continued detention is senseless and punitive.

Twenty-eight of the detainees have not even been charged. How can someone be imprisoned with no trial, no judgment of guilt and no charges? Such conduct by our government and military courts utterly betrays the constitutional promise of due process. Honoring this fundamental principle would demand immediate release of these unconstitutionally detained individuals.

Some commentators have suggested the that military commissions should be allowed to continue and that some or all of the detainees should be tried before these commissions. A criminal defense attorney from Indianapolis, Richard Kammen, spent nine years assisting with the defense of Abdul Rahim Al-Nashiri, a Guantanamo detainee charged with involvement in the bombing of the USS Cole. Al-Nashiri was charged in 2003. He has yet to be tried.

Arizona soldiers are deploying Dec. 29, 2017, for Guantanamo Bay and will be gone for about nine months.(Photo: AFP/Getty Images)

At the 2018 Kentucky Bar Annual Convention, Kammen described how it became impossible to provide meaningful legal representation due to restrictions imposed by the military commissions that offend the principles of due process we as Americans take for granted. He described how guards confiscate privileged legal materials from the cells of the detainees and how the military prosecutors read defense counsel’s correspondence to their clients.

The commander of the prosecution issued an order requiring military officials to review all legal correspondence between defense counsel and their clients, and counsel who refuse would not be allowed to visit their clients. Kammen and his colleagues discovered that the rooms in which defense counsel had been meeting with their clients for years were wired with microphones disguised as smoke detectors.

The government also intruded into defense counsels’ emails. In 2013, it was discovered that the FBI had recruited an informant on a defense legal team. When the military judge prohibited Kammen and his legal team from informing their client of concerns about attorney-client confidentiality on grounds that would result in disclosing classified information, Kammen decided that he could not ethically continue to represent his client, as he was prevented by our government and the military courts from providing constitutionally adequate representation. Thus, he was ethically compelled to withdraw.

A cell block(Photo: Tom Vanden Brook/USA TODAY)

Moreover, these same military commissions have denied detainees any effective opportunity to challenge the government’s use of detainees’ confessions that were obtained through torture and "enhanced interrogation" methods that would never survive scrutiny in any court in the United States. Counsel for detainees have been denied access to evidence relating to the circumstances under which confessions were obtained.

The government and military commissions have done this under the shadowy rubric "national security" or protection of "classified information." Everything about the conduct of these military commissions is antithetical to the fundamental principles of the right to effective assistance of counsel and to a fair trial, rights that have long since been embedded in the Fifth and Sixth Amendments to our Constitution.

It should be obvious to any lawyer or jurist that trials comporting with due process are not possible with military commissions. To the extent that the government can provide any justification for detaining anyone, those people should be brought to American soil and tried in federal courts. The government is reluctant to do this because of the scrutiny that would necessarily focus on statements obtained from the detainees by the most brutal forms of interrogation yet devised.

This is not American justice. This is not America. We are lawyers, and we are deeply offended by the injustices of Guantanamo. Join us in calling on bar associations, elected officials and fellow citizens in closing this awful stain on our legal system and our country.